the elephant in the room

I thought it time to catch up on Canadian copyright events and turned to Michael Geist. It was a pleasure to read that the Association of Canadian Community Colleges (ACCC) has developed and distributed a well-balanced fair dealing policy.

A trip to the ACCC website further illustrates their proactive effort – workshops on copyright and fair dealing are scheduled for this fall:

On August 30, a fair dealing policy and an opinion letter from legal counsel were distributed to members. ACCC will hold copyright workshops this fall covering implementation of the fair dealing policy, the application of the July Supreme Court of Canada ruling on fair dealing, and the Copyright Modernization Act. Copyright Law for Education in 2012 workshops will be held in Toronto November 12; Halifax November 14; Ottawa November 26; Calgary November 29; and Vancouver December 6.

My only quibble with ACCC is their suggestion that, “The workshops will be of particular interest to directors of library services, copyright specialists and managers responsible for copyright compliance.” The principal audience should be “faculty.” Issues of copyright or fair dealing arise when materials are chosen and those decisions are made by individual teachers.

But before anyone rushes to evaluate fair dealing, Geist reminds us that universities and colleges have already licensed copious amounts of material for use by students. Add in the profusion of publicly available material via the Internet (which carry an implied license of use) and public domain materials (which are more easily accessible thanks again to the Internet) it could well be that decisions of fair dealing will not be as prevalent as we might believe now. That said, one aspect of instructional material needs a nuanced understanding of fair dealing and copyright.

Further reading of the comments to Geist’s post brings the elephant in the room into sharper focus: course packs. By their nature, course packs are an assemblage of individual copyrighted works where each individual work may well be a candidate for fair dealing. But to immediately decide that the pack as whole is fair dealing is too hasty an action. A reasonable point from where to begin discussion lies, as commentators observed, in consideration of the material – what purpose does it serve? Does it provide a core concept, or it is illustrative to that concept? Illustrative could mean emphasis of the concept, or setting context, or a rebuttal to the concept itself or … Again, the teacher is the one who will best understand why the material was chosen.

If the material is a core contribution to the course then ask, what was the nature of that work? A divisional line is often textbook v. journal. The journal publication may already be licensed by the institution. Or perhaps is an open-access journal? With textbooks, different questions arise. Is the textbook still on the market? If students could not purchase the work itself, an educational use of some of the work has heightened legitimacy – denying students the material serves no benefit to anyone. If it is currently available on the market, depending on the amount taken, perhaps this is where licensing is necessary. In which case, since textbooks have very visible copyright holders – publishers – negotiations are direct. Whatever fees are paid, they are not diluted by middle-men operations.

It will take a little time to gain some ease with newer business models to manage the distribution of copyrighted works. But balancing fairness to students and legitimate compensation to copyright holders has never been, nor will it ever be, easy.